Punevski v The Queen
[2000] WASCA 397
•15 DECEMBER 2000
PUNEVSKI -v- THE QUEEN [2000] WASCA 397
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 397 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:124/1999 | 3 DECEMBER 1999 | |
| Coram: | KENNEDY J WALLWORK J ANDERSON J | 15/12/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal against sentence grantedNon-parole period reduced from 8 years to 6 years and 8 months | ||
| PDF Version |
| Parties: | TRAJCE PUNEVSKI THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Attempt to obtain possession of a prohibited import (ecstasy) being not less than the commercial quantity Applicant regarded by sentencing Judge as a "collector" Sentence of 13 years not set aside as excessive Non-parole period reduced from 8 years to 6 years and 8 months |
Legislation: | Nil |
Case References: | Punevski v The Queen [2000] WASCA 71 The Queen v Olbrich (1999) 199 CLR 270 Ahern v The Queen (1988) 165 CLR 87 Diefenbach v The Queen [1999] WASCA 4 Edwards v The Queen (1993) 178 CLR 193 Kural v The Queen (1987) 162 CLR 502 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Bilick (1984) 36 SASR 321 R v Dinic (1997) 149 ALR 488 R v Laurentiu (1992) 63 A Crim R 402 R v Piercey [1971] VR 647 R v Robertson (1989) 44 A Crim R 224 R v Storey (1998) 1 VR 359 Saad v The Queen (1987) 70 ALR 667 The King & The Attorney General (Cth) v The Associated Northern Collieries (1911) 14 CLR 387 Tripodi v The Queen (1961) 104 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PUNEVSKI -v- THE QUEEN [2000] WASCA 397 CORAM : KENNEDY J
- WALLWORK J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Attempt to obtain possession of a prohibited import (ecstasy) being not less than the commercial quantity - Applicant regarded by sentencing Judge as a "collector" - Sentence of 13 years not set aside as excessive - Non-parole period reduced from 8 years to 6 years and 8 months
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal against sentence granted
Non-parole period reduced from 8 years to 6 years and 8 months
Representation:
Counsel:
Applicant : Mr R L B Van De Wiel QC
Respondent : Mr J A Scholz
Solicitors:
Applicant : Tully & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Punevski v The Queen [2000] WASCA 71
R v Olbrich (1999) 199 CLR 270
Case(s) also cited:
Ahern v The Queen (1988) 165 CLR 87
Diefenbach v The Queen [1999] WASCA 4
Edwards v The Queen (1993) 178 CLR 193
Kural v The Queen (1987) 162 CLR 502
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
R v Dinic (1997) 149 ALR 488
R v Laurentiu (1992) 63 A Crim R 402
R v Piercey [1971] VR 647
R v Robertson (1989) 44 A Crim R 224
R v Storey (1998) 1 VR 359
Saad v The Queen (1987) 70 ALR 667
The King & The Attorney General (Cth) v The Associated Northern Collieries (1911) 14 CLR 387
Tripodi v The Queen (1961) 104 CLR 1
(Page 3)
1 JUDGMENT OF THE COURT: The applicant was presented in this Court on 17 May 1999, together with one Ruvinovski, on an indictment jointly charging them:
" … that on the 1st day of April 1998 at Perth … [they] without reasonable excuse, attempted to obtain possession of a prohibited import to which section 233B of the Customs Act 1901 applies, which had been imported into Australia in contravention of that Act namely, narcotic goods consisting of a quantity of [ecstasy] being not less than the commercial quantity applicable to that narcotic substance, contrary to section 233B(1)(c) of that Act."
2 Both accused pleaded not guilty. The trial concluded on 28 May 1999 with verdicts of guilty against both. They were each sentenced to 13 years' imprisonment with an 8-year non-parole period. The applicant appealed against his conviction and sought leave to appeal against his sentence. These matters were heard on 3 December 1999. The applicant's appeal against conviction was dismissed on 28 March 2000: Punevski v The Queen [2000] WASCA 71. The Court deferred judgment on the application for leave to appeal against sentence until an appeal by Ruvinovski against his sentence had been heard. It had been intended that both sentencing appeals should be heard by the same coram, but this turned out not to be possible and Ruvinovski's appeal was heard by a differently constituted court comprising only two of the three members of this coram. The Court has arranged for the judgment in Ruvinovski's case to be delivered first and for this judgment to be delivered immediately thereafter. This judgment has been written in the knowledge of the contents of the judgment in Ruvinovski's case and in the knowledge that Ruvinovski is to be granted leave to appeal and that his sentence will be varied by reducing the non-parole period of 8 years to 6 years and 8 months.
3 In the case under consideration by this coram, the applicant's grounds of appeal against sentence are:
"1. Her Honour erred in finding Punevski's role as being similar and/or same as Ruvinovski.
2. Her Honour erred in finding Punevski's role as being similar and/or same as Mustafa.
3. The sentence is manifestly excessive."
(Page 4)
4 The reference to Mustafa in the second ground of appeal is, of course, a reference to the third co-offender. Mustafa pleaded guilty and was sentenced to a term of 12 years with a 7-year non-parole period.
5 The nature and circumstances of the offence committed by the applicant and his co-offenders and their respective actions on the day in question are described in detail in Punevski v The Queen (supra).
6 The matters relevant to a determination of a proper sentence in this kind of case are fully set out in the judgment in Ruvinovski's case. As Anderson J said in that case, the known facts do not permit the Court to draw any worthwhile distinction between the relative culpability of Mustafa, Ruvinovski and the applicant. The three men acted in concert in an attempt to obtain delivery of the narcotics from the courier who had brought them into the country. Of course, they did different things, but the evidence as to what each did does not persuade us that the applicant was any the less culpable than the other two. If the assumption is made that each of the three men were part of a wider hierarchical organisation, none of the evidence relating to their individual activities would place any one of them in a different hierarchical position from the other. It is true that it was Mustafa who made most, if not all, of the overseas telephone calls on the day of the attempted pick-up and it is true that it was Ruvinovski who made the first person-to-person contact with the courier Schubert. It was Mustafa who later in the day actually took physical delivery of the package of substituted material from Schubert and it was he who made a payment of money to Schubert. Little significance can be attached to the fact that it was Mustafa who made the overseas telephone calls and ultimately took delivery and made payment. All of the calls made by Mustafa were made while he was with the other two and after he had been seen conversing with the other two, or one or other of them. As was pointed out in Ruvinovski's case, the fact that it was Mustafa who actually received the parcel from Schubert is also of little or no significance. It was Ruvinovski who made the first unsuccessful attempts to get the goods from Schubert after he had been in the presence of and conversing with Mustafa and the applicant for some time. Once the parcel was handed to Mustafa, he went straight to where the applicant and Ruvinovski were waiting in St George's Terrace and got into Ruvinovski's car, watched by the applicant.
7 One of the main submissions made on the applicant's behalf was that he had no contact at all with Schubert, not even by telephone. It is true that her Honour understood the evidence to be that there was no evidence of any contact between the applicant and Schubert. However, as was
(Page 5)
- pointed out in Punevski v The Queen [at 14 - 18], there is clear evidence that the applicant did speak to Schubert by telephone shortly before 3.30 pm for the purpose of arranging a delivery rendezvous.
8 As Anderson J said in Ruvinovski's case, it is impossible to know what was the precise role of each man if the assumption is made that they were part of a bigger organisation. That was the assumption that was made by the learned sentencing Judge. On the basis of that assumption, she took them to be mere "collectors" with respect to the drugs brought in by Schubert. We are not persuaded that the applicant has any cause for complaint about being so treated. The evidence of what the applicant actually did throughout the day in question compels the conclusion that he was an active participant in the commission of the crime with which he was charged. As the evidence stood, the sentencing court was entitled to treat him as acting for himself in concert with the other two men and not as acting in the lesser role of one of three collectors. There was no evidence of any wider distribution network, nor of any chain extending beyond these three men, nor of any organisational structure in which there were people higher up than the applicant. That the applicant had less contact with Schubert than the other two, and that he appears to have had no contact with anyone else other than Mustafa and Ruvinovski, save for the telephone call to Schubert in the afternoon, does not necessarily mean that he had an inferior status or a lesser involvement. He was nearby and in communication with them by phone or personally at all material times, including at critical times. His somewhat lower level of personal activity is entirely equivocal. It is not inconsistent with him having a directory or supervisory role, vis-a-vis Mustafa and Ruvinovski, instructing and deploying them as the need arose.
9 We adopt, with respect, what was said in Ruvinovski's case concerning the approach that should be taken by a sentencing court when it is left to speculate about the respective roles and levels of responsibility of several people involved in the same trafficking offence. All the sentencing court can do is look at the objective facts, treat them as providing the prima facie information regarding the defendant's level of culpability and sentence accordingly, unless the prima facie position is displaced by other material. It is for the defendant to prove, on the balance of probabilities, matters which he contends should go in mitigation of his sentence. In the absence of proof of such matters, there is no obligation on the Court to engage in favourable speculation: R v Olbrich (1999) 199 CLR 270, par 24 and par 26. The applicant gave no evidence either at trial or for the purpose of sentencing.
(Page 6)
10 The facts demonstrate that the applicant was actively engaged with Mustafa and Ruvinovski over a long period on 1 April 1998 in attempting to get physical possession from Schubert of a commercial quantity of ecstasy. For that offence, the maximum penalty is life imprisonment. Mustafa was treated slightly more leniently than the applicant and Ruvinovski, but expressly because of his plea of guilty and because the Court accepted the submission made on his behalf that he was not part of any trafficking organisation and had been simply recruited by Ruvinovski and the applicant on the day, to help them deal with Schubert; ie, that as between the three of them, his was the minor role. That submission is, of course, to be placed in stark contrast with the submission made on behalf of the applicant in this appeal (and also on behalf of Ruvinovski as appears from the judgment in that case) that it was Mustafa who was the leader and that it was he who had recruited the applicant and Ruvinovski.
11 We are not persuaded that there was any basis on which to differentiate between the roles of the three men for sentencing purposes.
12 As to the ground of appeal which pleads that a head sentence of 13 years is manifestly excessive, we respectfully adopt what was said in Ruvinovski's case. We would not disturb the head sentence.
13 However, for the reasons explained in Ruvinovski's case, we are of the opinion that a non-parole period of 8 years is excessive and, again for the reasons expressed in Ruvinovski's case, we would reduce the non-parole period to 6 years and 8 months and vary the sentence accordingly.
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